Citation Nr: 9836730
Decision Date: 12/17/98 Archive Date: 12/30/98
DOCKET NO. 96-15 204 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Seattle,
Washington
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
psychiatric disorder.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
James R. Siegel, Counsel
INTRODUCTION
The veteran served on active duty from January 20, 1976 to
April 1, 1976.
By rating decision dated in March 1985, the Regional Office
(RO) denied the veteran’s claim of entitlement to service
connection for a psychiatric disorder on the basis that it
was not present in service or related to her service
connected residuals of a concussion. She was informed of
this decision and of her right to appeal by a letter dated
later that month, but a timely appeal was not received.
During the intervening years, she sought on numerous
occasions to reopen her claim, but such attempts were denied.
By rating action in October 1992, the RO again denied the
veteran’s request to reopen her claim for service connection
for a psychiatric disorder, which also included a denial of
the issue of whether a psychiatric disability was secondary
to her service connected residuals of a concussion. She was
again notified of this decision and of her right to appeal,
but a timely appeal was not filed.
Recently, the veteran has submitted additional evidence,
seeking to reopen her claim for service connection for a
psychiatric disorder. In a letter dated January 1995, the RO
advised the veteran that her claim had again been denied.
Following the receipt of additional evidence, the RO, in a
rating decision dated September 1995, concluded that new and
material evidence had not been submitted to reopen a claim
for service connection for a psychiatric disorder. It was
also noted that service connection for a psychiatric disorder
on the basis that it was secondary to her service connected
residuals of a concussion was denied without regard to
finality of the previous determinations.
The RO issued a statement of the case in January 1996 in
which the issues were listed as whether new and material
evidence was submitted to reopen a claim for service
connection for a psychiatric disorder, and service connection
for a psychiatric disorder on a secondary basis. The RO
included the provisions concerning finality of decisions, as
well as the regulations concerning the grant of service
connection on direct, presumptive and secondary bases. In
explaining its decision, the RO, in effect, reopened the
claim for service connection on a direct basis and considered
this claim on the merits. In addition, the RO also
considered the claim for service connection for a psychiatric
disability on a secondary basis without regard to finality of
the previous determinations.
In a supplemental statement of the case originally issued in
December 1997, the RO phrased the issue as entitlement to
service connection for a psychiatric disorder. A review of
that supplemental statement of the case reflects that the RO,
in effect, reopened the claim for service connection and
denied it on the merits, to include direct, presumptive and
secondary bases. However, the Board of Veterans’ Appeals
(Board) points out that it is still obligated under 38
U.S.C.A. § 5108 (West 1991) to review the evidence of record
and make a determination as to whether the evidence is new
and material to warrant reopening of the claim for service
connection for a psychiatric disorder. See Barnett v. Brown,
83 F. 3d. 1380, 1383-84 (Fed. Cir. 1996); see also Wakeford
v. Brown, 8 Vet. App. 237 (1995).
In her substantive appeal submitted in March 1996, the
veteran referred to a claim for an increased rating for her
service connected residuals of a concussion. Since this
matter was not adjudicated or developed for appeal, it is
referred to the RO for appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the evidence she has submitted is
new and material, warranting reopening of her claim and a
grant of service connection for a psychiatric disorder. In
support of her claim, she refers to a statement from a
Department of Veterans Affairs (VA) physician, various
articles she has submitted and the results of a VA
examination in 1995. She asserts that this evidence
demonstrates that her psychiatric disorder is related to her
service-connected concussion.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that new and material evidence
has been submitted to reopen a claim of entitlement to
service connection for a psychiatric disorder, but that the
preponderance of the evidence as a whole is against the claim
for service connection for a psychiatric disorder.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by
the RO.
2. The March 1985 rating decision, which denied service
connection for a nervous condition, was not appealed
following the RO’s issuance of notice of the denial; and
that decision is final.
3. By subsequent determinations by the RO in November 1988,
March 1989, June 1990, February 1991, April 1991, June
1992, and October 1992, the RO continue and confirmed the
March 1985 disallowance, and declined to reopen the
veteran’s claim of entitlement to service connection for a
psychiatric disorder. The veteran did not initiate an
appeal with respect to any of these adverse
determinations.
4. The evidence submitted since the RO’s most recent
determination includes evidence which was not previously
considered and which bears directly and substantially on
the issue before the Board, and is so significant that it
must considered to fairly decide the merits of the claim.
5. The veteran has been granted service connection for
residuals of a concussion, with headaches, evaluated as 10
percent disabling.
6. The veteran’s psychiatric disorder is unrelated to service
or her service-connected concussion residuals.
CONCLUSIONS OF LAW
1. The evidence received since the RO denied entitlement to
service connection for a psychiatric disorder in October
1992 is new and material, and the claim is reopened.
38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R.
§§ 3.104(a), 3.156(a), 20.302 (1998).
2. A psychiatric disability was not incurred in or
aggravated by service, nor is it proximately to or the
result of the service connected disease or injury.
38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R.
§ 3.310(a) (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. New and Material Evidence
As previously noted, the veteran’s original claim for service
connection for a psychiatric disability was denied in a March
1985 rating decision. That decision was predicated on
findings that a nervous disorder was not shown by the
evidence to have been incurred in or aggravated by service,
or shown by the evidence to have been related to the service-
connected residuals of a concussion. Following notification
of the March 1985 decision, along with her appellate rights,
an appeal was not filed by the veteran. Thus, the March 1985
rating decision is final. See 38 U.S.C.A. § 7105(c);
38 C.F.R. § 3.104(a).
In rating decisions subsequent to the March 1985 denial, the
RO continuously confirmed the March 1985 disallowance, and
denied reopening the veteran’s claim for service connection
for a psychiatric disability. The veteran was notified of
each of the subsequent rating decisions, which denied her
attempts to reopen her claim, and of her appellate rights.
She did not initiate an appeal with respect to any of these
adverse decisions. See 38 U.S.C.A. § 7105(c).
The RO’s most recent unappealed rating disallowance to reopen
the veteran’s claim for service connection for a psychiatric
disability was a rating decision dated in October 1992. She
was notified that her request to reopen her claim was denied
on the basis that the evidence she submitted was not material
as it did not establish a relationship between her
psychiatric disability and service, or her service-connected
residuals of a concussion. The veteran never filed a notice
of disagreement with that decision. Therefore, that decision
is final and is not subject to revision on the same factual
basis. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.104(a).
With regard to petitions to reopen previously and finally
disallowed claims, the Board must conduct a two-step
analysis. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).
First, the Board must determine if the evidence submitted by
the claimant is new and material. Id; 38 U.S.C.A. § 5108.
If the Board determines that the submitted evidence is not
new and material, then the claim cannot be reopened. Id.
Second, if the Board determines that the claimant has
produced new and material evidence, it must reopen the claim
and evaluate the merits of the claim in light of all of the
evidence, both old and new. Manio, 1 Vet. App. at 145-46
(explaining that the relevant legislative history confirms
that Congress intended section 5108 to permit review of all
of the evidence of record once the claim is reopened).
Pursuant to 38 U.S.C.A. § 7105(c), a final decision by the RO
may not thereafter be reopen and allowed. The exception to
this rule is 38 U.S.C.A. § 5108, which provides that “[i]f
new and material evidence is presented or secured with
respect to a claim which has been disallowed, the [Board]
shall reopen the claim and review the former disposition of
the claim.” Therefore, once a RO decision becomes final
under section 7105(c), absent the submission of new and
material evidence, the claim cannot be reopened or
adjudicated by the VA. 38 U.S.C.A. §§ 5108, 7105(c); Barnett
v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).
“New and material evidence” means evidence not previously
submitted to agency decision makers, which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative or redundant, and which by itself
or in connection with evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a).
The Board notes that the United States Court of Appeals for
the Federal Circuit recently held that the United States
Court of Veterans Appeals (Court) erred in adopting the test
articulated in Colvin v. Derwinski, 1 Vet. App. 171 (1991).
See Hodge v. West, No. 98-7017 (Fed. Cir. Sept. 16, 1998).
In Colvin, the Court adopted the following rule with respect
to the nature of the evidence which would justify reopening
of a claim on the basis of new and material evidence:
“there must be a reasonable possibility that the new
evidence, when viewed in the context of all the evidence,
both new and old, would change the outcome.” Colvin, 1 Vet.
App. at 174. In light of the holding in Hodge, the Board
will analyze the evidence submitted in the instant case
according to the standard articulated in 38 C.F.R.
§ 3.156(a). This standard, as aptly noted above, focuses on
whether the new evidence (1) bears directly and substantially
on the specific matter, and (2) is so significant that it
must be considered to fairly decide the merits of the claim.
See Fossie v. Brown, No. 96-1695 (U.S. Vet. App. Oct. 30,
1998).
In view of the fact that the Court has held in Fossie that
the standard articulated in 38 C.F.R. § 3.156(a) is less
stringent than the one previously employed by Colvin, the
Board determines that no prejudice will result to the veteran
by the Board’s consideration of this matter. See Bernard v.
Brown, 4 Vet. App. 384, 393-94 (1993).
The additional evidence in this case consists of numerous
private and VA medical records, and copies of various journal
articles. In particular, the Board notes that a VA physician
concluded in February 1994 that the veteran was service-
connected for head trauma and that it was “quite likely that
the resultant brain damage she suffered has resulted in her
organic problems with lability and concrete interpretation of
others.” In addition, the Board notes that following a VA
psychiatric examination in June 1995, a physician indicated
that it was his educated guess that the veteran was a
disturbed adolescent whose military experience triggered her
decompensation into an overt mental illness, which had
plagued her for her entire life.
Clearly, this evidence, which suggests that the veteran’s
psychiatric disorder is related to her military experiences
and (or) the service-connected concussion residuals, bears
directly on the matter before the Board, and is of such
significance that it must be considered to fairly decide the
claim. Accordingly, the Board determines that, with the
submission of new and material evidence, the veteran’s claim
for entitlement to service connection for a psychiatric
disability is reopened. The Board will, therefore, review
the entire evidence of record on a de novo basis.
Since the veteran has submitted new and material evidence
warranting reopening of her claim, the Board must next
consider whether the due process requirements of Bernard have
been satisfied prior to addressing the issue of entitlement
to service connection for a psychiatric disorder. Bernard, 4
Vet. App. at 394. The Board concludes, however, that the due
process requirements of Bernard have been met, and that the
veteran will not be prejudiced by the Board's decision on the
merits of the claim. Her arguments clearly relate to the
underlying merits of the claim; that is, that her psychiatric
disability is related to her service-connected residuals of a
concussion, and show that she understood the nature of the
evidence needed to substantiate her claim on the merits.
Moreover, the statement of the case and the supplemental
statements of the case have informed her of the pertinent
laws and regulations governing a decision on the merits. See
Curry v. Brown, 7 Vet. App. 59 (1994).
II. Service Connection
Factual Background
The service medical records disclose no complaints or
findings pertaining to a psychiatric disability. In March
1976, the veteran reported that she was jumping a wall and
fell on the other side. She felt like she had twisted her
neck. She complained of a severe headache. It was noted
that she appeared to be quite lethargic and had slowed
speech. She also reported chest pain. She was admitted to
the hospital for observation and discharged two days later.
The diagnosis was concussion, treated.
The veteran was admitted to a private facility in August
1977. It was noted that she had a past history of depression
and was being seen by a psychiatrist and taking anti-
depressant medication. She had stopped taking medications
several days earlier and was now depressed. The impressions
were acute psychosis and confusion, rule out secondary
organic brain syndrome and rule out secondary psychosis.
Private medical records show that the veteran was referred to
a clinic by the emergency room of another private facility in
November 1977 for a follow-up on a recent short-term
psychiatric hospitalization. It was noted that she had been
admitted to the other private facility in September 1977 for
a psychotic break and that the diagnosis at that time was
possible schizophrenia. It was indicated that she had been
living and working on the campus of a religious community for
about one year. She related that she had been under the care
of a psychiatrist working in that community. It was noted
that she was taking medication, but she was not sure what the
medication was. The veteran indicated that throughout her
life, she had problems associating with other people. She
used the word withdrawn and to describe herself on several
occasions. She indicated that she was a restless sleeper and
a sporadic eater, but was unable to describe any specific
situations that seemed to provoke any of these habits. The
therapist indicated that he believed it was appropriate to go
along with the diagnosis of schizophrenia, residual type.
The veteran was hospitalized in a private facility in May
1978 and complained of feeling depressed, hearing voices and
fearing that someone might be trying to kill her. It was
indicated that she reported that she had been hearing voices
frequently for about two years, and intermittently before
that. She described a long history of emotional problems,
with her first suicide attempt at age 14. She indicated that
she had been hearing voices for about four years. She stated
that she had been honorably discharged after boot camp for
psychiatric reasons. The diagnoses included auditory
hallucinations and suicidal ideation.
The veteran was again hospitalized in a private facility in
August 1979. She gave a history of periodic mood changes for
six years.
During an October 1979 hospitalization at the same facility,
the veteran related that her first psychiatric
hospitalization was in service. She indicated that she was
having auditory hallucinations. She noted that when she was
19 years old, she became withdrawn and agitated on the job
and saw a psychiatrist for three months. She related that
she had not been treated with medications. The final
diagnosis was borderline personality.
Numerous VA and private medical records, as well as reports
from state facilities dated from 1980 to the 1990’s have been
associated with the claims folder. These medical records
reflect a variety of diagnoses, including adjustment
disorder, bipolar mood disorder, borderline personality
disorder and a schizo-affective disorder.
During a VA examination in February 1985, the veteran
complained of a concussion with a neck injury. She noted
that during basic training, she was struck in the head and
fell 5 feet to the ground. She reported that she suffered a
brief loss of consciousness at that time and then had
episodes of passing out and dizzy spells while on a march.
It was indicated that she had been hospitalized for two or
three days and then sent back to basic training which she was
never able to complete due to a problem with headaches and
irritability. At that time, she reported that she had a
concussion diagnosed. It was indicated that the veteran had
been diagnosed as schizophrenic, schizo-affective type and
had had over 100 hospitalizations since 1977, when she had
suffered her first psychotic break. It was further indicated
that the veteran’s psychiatric history began while she was in
service. It was noted that she saw a psychiatrist for an
evaluation in “1976” and was seen apparently one time after
that by her history. There was no knowledge of any
diagnosis. Her first hospitalization for psychiatric
problems was in 1977, following her discharge. The examiner
concluded that the veteran suffered a head injury while in
service and that she was entirely disabled from her
psychiatric problems. He concluded that there was little or
no relationship between these two events, but stated that the
veteran’s first contacts with psychiatric services occurred
while she was in service.
VA conducted a neuropsychiatric examination of the veteran in
September 1986. The resulting diagnostic impressions were
post-concussion syndrome with headaches, manic depressive
disease by history, and static tremor. The examiner
indicated that the veteran’s main impairment was from her
neuropsychiatric condition; and that she did not have any
real impairment in her motor or sensory function.
On VA hospitalization in May 1987, it was noted that the
veteran had a 10-year history of psychotic and active
symptoms, along with a long history of significant alcohol
abuse. There was also a history of a closed head injury, the
significance of which was not known.
When the veteran was hospitalized by the VA in March 1991, it
was indicated that she had been in and out of mental
institutions for a long time. She stated that she had
experienced almost a total memory loss between the ages of 5
and 7. It was noted that she became rebellious and that in
her early teens, she took various items to skid row in
exchange for booze. Later on, she indicated that she
believed this was related to trying not to deal with the
memories of her father’s abuse of her.
While an in-patient at Western State Hospital in May 1991,
the veteran indicated that she was in service for only four
months due to a neck injury.
In February 1994, a VA physician stated that the veteran’s
multiple mental illness problems had combined to render her
very volatile. It was indicated that she was service
connected for a head trauma, and that it was “quite likely
that the resultant brain damage she suffered has resulted in
her ongoing problems with lability & concrete interpretation
of others.”
The veteran sought to reopen her claim for service connection
for a psychiatric disorder in September 1994.
In April 1995, a VA physician reviewed the veteran’s claims
file and military records. The veteran was not interviewed.
The examiner noted that the military records show the while
in training, the veteran fell over a jumping wall and twisted
her neck. She complained of headaches. She was noted to
appear lethargic with slowed speech and a complaint of chest
pain. There was no documentation of loss of consciousness.
She was admitted for observation for two days and then
returned to duty. It was not clear from the records whether
she ever completed boot camp training prior to her discharge.
The examiner indicated that the veteran had an extremely
complex psychiatric history, with psychiatric admissions too
numerable to count. It appeared that she had been admitted
to some sort of psychiatric facility about four or five times
a year since 1977. Over her history, she had received a
multitude of diagnoses, with a consistent downhill course.
She had not had any documented organic impairment. The
diagnoses were atypical psychosis, alcohol dependence, status
unclear, polysubstance dependence, status unclear, and
borderline personality disorder.
The examiner commented that time the veteran had initially
been diagnosed as having bipolar disorder, her symptoms had
deteriorated and the diagnosis seemed to have shifted to
schizo-affective disorder. A review of the record clearly
showed that her symptomatology was compounded by alcoholism
and continued substance abuse. Her multiple evaluations,
including psychological evaluation, had not shown any
evidence of organic brain disturbance. It was emphasized
that in reviewing military health records, there was no
documentation of any loss of consciousness. She was
described as having a concussion, but was only observed for a
couple of days and no treatment was given. There was also no
evidence of any disability upon discharge. He concluded that
there was no evidence that the veteran’s multiple psychiatric
problems, including a psychosis, had any relationship to her
service connected head injury. He added that it must be
emphasized that the documentation of a head injury was
marginal at best.
The veteran was examined by two VA psychiatrists in June
1995. The claims file was available, but hospital clinical
records were not. When asked about her early years, the
veteran initially claimed to be healthy and without serious
problems prior to service, but as the interview progressed,
she dropped little remarks that suggested all was not so
well. She admitted that she was a little wild sometimes.
She acknowledged that she had some problems in school. She
tended to minimize these early problems. She stated that she
fell and injured her head in basic training. She stated that
she was hospitalized for two days and then returned to duty.
She indicated that she was recycled in basic training, but
never finished. She was apparently given some restrictions
regarding activity, but there was no mention of these in her
military record. There were no records which described her
mental status in service. She related that she was
increasingly irritable around people. She noted that she was
just hurting and wanted to go home. The veteran reported
that she saw a psychiatrist in service. She added that he
would say that she had not really failed and that he
understood why she felt depressed. Following a mental status
examination, the diagnoses were mood disorder, not otherwise
specified, chronic, with psychotic features and alcohol
abuse, from history.
The examiners concluded that the veteran presented an
interesting problem regarding diagnosis, treatment and onset
of illness. The military records reported a “concussion”
with no other mental status data of any help. She was
discharged from service, apparently through administrative
channels. Although the veteran reported that she was
depressed and saw a psychiatrist, no such records were noted
in the military file. It was indicated that in the
experience of one of the examiners, military personnel being
discharged for unsuitability were routinely referred for
psychiatric evaluation, but no such evaluation was found for
the veteran. It was further noted that she was service
connected for brain syndrome which indicated some organic
problems, but that the examination did not suggest
organicity. The assumption was that the veteran’s mental
illness was not related to “brain syndrome” unless “brain
syndrome” was meant to be some sort of a psychiatric
diagnosis. One of the examiners offered a speculation, based
on ten years in service, that the veteran’s history certainly
suggested problems during her early life, although she tended
to play them down. She had not gotten along with her mother.
It could well be that the blow on the head with a minor
concussion and a short hospitalization started her mental
decompensation. The veteran recalled increasing irritability
and increasing problems getting along with others. Although
the material was not present in the claims file, an educated
guess would be that this was a disturbed adolescent whose
military experience triggered the decompensation in to an
overt mental illness which had plagued her all her life.
The veteran was also seen by a VA social worker in June 1995.
She related that she was performing on an obstacle course in
basic training and fell off a wall approximately 8 feet, and
received a concussion. She was hospitalized and observed for
three days and was given limitations on her activity by the
doctor after she re-entered basic training. After a period
of time, she reported that she was discharged for a brain
syndrome disability. In reviewing the claims file, it was
clear that the veteran had had multiple hospitalizations
every year since 1977. Although the veteran reported that
she began having problems with auditory hallucinations and
other unspecified behavioral problems in 1979, the claims
file documented hospitalizations dating to 1977. The
impression was that she first experienced a concussive head
injury in basic training and had experienced very poor social
and occupational adjustment since then. The problems had
been marked by the onset of auditory hallucinations and
paranoid delusions in 1979. It was indicated, however, that
the record showed this occurring in 1977. It was the
examiner’s impression that it was more likely that the
lability described by the veteran and others who worked with
her was due to reasons of character rather than reasons of an
organic brain disorder.
Of record are various articles concerning head injuries,
including their effect on cognitive behavior and personality
disturbances.
The veteran was again afforded a psychiatric examination by
the VA in March 1997. She related that when she fell off a
wall during basic training, she lost consciousness. She did
not recall the amount of time that she was unconscious. The
examiner reviewed the record and indicated that the treatment
records show that she had a severe headache and appeared
quite lethargic with slowed speech. She had been admitted
for observation and discharged after a period of observation.
The veteran related that after she returned to duty, she was
assigned to light duty and placed on a holdover and was not
able to complete basic training. She had difficulty in
functioning and then developed some disciplinary problems.
She had increasing irritability and depression at the time.
She did not have a psychiatric examination at the time of her
discharge. After leaving service, she tried to work briefly
and then impulsively burned her birth certificate and
military records, then traveled all over the country for
several months. When she came back, she was hospitalized and
had had multiple hospitalization since then.
During the interview, the veteran stated that her problems
had been interrelated, that she did not have problems with
irritability and depression prior to the head injury. She
stated that her personality began to change within a month or
two after the accident. A brief neurological examination was
conducted. A Babinski was done and the right toe was down
going. The left toe did not respond. The examiner commented
that the veteran had a long and complicated neuropsychiatric
history. The veteran stated that her problems did not
develop until after she sustained a head injury. The head
injury appeared to have been significant in that
consciousness was lost and she was noted to be lethargic in
the emergency room. She had had numerous psychiatric
problems since that time and had some subtle neurological
findings consistent with the head injury, that is, a forehead
tap did not extinguish and her Babinski was equivocal on the
left side. The examiner indicated that it was impossible to
separate the symptoms of her psychiatric illness from the
head injury, as the head injury preceded her psychiatric
illness and the time frame was presumably only about two or
three months. Clearly, she had a psychotic disorder with
auditory hallucinations and paranoid delusions, as well as a
long history of impulsivity. This was consistent with either
a head injury or schizophrenia. The diagnoses were schizo-
affective disorder, possibly organic etiology, and alcohol
abuse in remission.
Service connection is in effect for residuals of a
concussion, with headaches, for which a 10 percent evaluation
has been assigned.
Analysis
Service connection may be granted for disease or injury
incurred in or aggravated by service. 38 U.S.C.A. § 1131.
Service connection may also be granted for disability which
is proximately due to or the result of a service-connected
disease or injury. 38 C.F.R. § 3.310(a).
The service medical records clearly document that the veteran
was hospitalized for several days in 1976 following a fall in
which she suffered a concussion. There is no support in the
record for some of her later allegations that she experienced
a loss of consciousness during this fall. Her main argument
is that her psychiatric disorder is related to her service-
connected concussion residuals. In this regard, the Board
notes that a VA physician attempted to make such a connection
in 1994. The physician noted that the veteran’s brain damage
had resulted in her ongoing problems with lability. In
addition, the Board points out that following the most recent
VA psychiatric examination in March 1997, the examiner noted
that the veteran’s psychiatric problems began after the head
injury and that it was impossible to separate the symptoms of
her psychiatric disorder from the head injury.
However, it is significant to point out that the medical
opinions which seemingly support the veteran’s claims are of
limited probative value. In this regard, the Board notes
that the opinion written by the VA physician in February 1994
was not based on a review of the claims folder. Moreover,
when one of the examiner’s concluded in June 1995 that the
veteran’s military experience triggered the decompensation
during service, and resulted in the psychiatric disability,
he specifically indicated that there was no support for this
opinion in the claims file. He characterized his own opinion
as speculative. In addition, some of the articles submitted
by the veteran tended to support her claim.
The Board notes that the initial opinion rendered concerning
the possible relationship of the veteran’s service connected
concussion and the subsequent development of her psychiatric
disorder was following the February 1985 VA examination. At
that time, the examiner specifically concluded that there was
little, if any, relationship between the head injury and her
psychiatric disability. The Board also points out that the
veteran’s claims file was reviewed by a VA physician in April
1995. That examiner noted that the documentation of a head
injury was, at best, marginal. The available records showed
no evidence of any organic brain disturbance. Moreover, he
specifically observed that the contemporaneous medical
records failed to document that the veteran had, in fact,
lost consciousness during the in-service fall. His
conclusion, based on its review of the medical records, was
that there was no evidence that the veteran’s psychiatric
problems had any relationship to her service connected head
injury.
The medical opinions supporting the veteran’s claim are of
less probative value than those which refute her allegations.
In this regard, the conclusions to the effect that the
veteran’s psychiatric disorder is related to her head injury
were either based on erroneous medical history (that she
suffered a loss of consciousness in service) or speculative
opinion. It is clear, however, that the opinions which rebut
the veteran’s claim that her psychiatric disorder is related
to the service-connected concussion are based on a complete
review of the medical records. Thus, these opinions are of
greater probative value. With respect to the articles
submitted by the veteran, the Board notes that in a single
judge decision cited for guidance, the Court noted that
“statements about risk factors, in general, simply do not
rebut a specific opinion provided about a specific patient
under a specific set of facts where that opinion does not
appear to be inconsistent with the general proposition.”
Herlehy v. Brown, 4 Vet. App. 122 (1993). See also
Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996).
Accordingly, the Board finds that the weight of the evidence
is against the claim for service connection for a psychiatric
disorder.
ORDER
New and material evidence having been submitted, the claim of
entitlement to service connection for a psychiatric disorder
is reopened.
Entitlement to service connection for a psychiatric disorder
is denied.
Deborah W. Singleton
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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